On Thursday retired social worker Trudi Warner appeared at the a High court hearing to determine whether the Solicitor General could prosecute her for contempt of court. Her alleged contempt was to hold up a sign outside Inner London Crown Court.
The sign read:
“Jurors you have an absolute right to acquit a defendant according to your conscience.”
Her protest troubled Judge Silas Reid who was at the time trying a case involving climate protestors from Insulate Britain. They had blocked a road in a demonstration. Judge Reid had withdrawn various defences from the jury, and in particular refused to allow them to argue that their actions were justified by the threat of climate change.
Although Ms Warner’s placard did not mention that particular trial, a possible inference from the sign was that she was encouraging and the jurors to acquit the defendants irrespective of the judge’s legal directions. In the event the jury convicted, so if that was her intention, she did not succeed. Nevertheless, Judge Reid was sufficiently concerned that he referred the case to the Government law officers, whose role it is to bring contempt of court proceedings arising out of criminal cases.
The Solicitor General decided that Ms Warner should be prosecuted for contempt of court. It was his application for permission to bring the proceedings that was heard by Mr Justice Saini on Thursday.
Ms Warner is represented by Clare Montgomery, one of the country’s most eminent KCs, and supported by the Good Law Project.
The case raises a tricky question, although it is one that I think the Judge may sidestep when judgment is delivered on Monday morning.
Do a juries have an “absolute right” to acquit a defandant?
They certainly have the power to do so. Nobody doubts that juries can, in practice, acquit – or convict – anyone in their charge, whatever the law may say, and whatever the evidence, without fear of legal punishment.
The principle is sometimes referred to as “jury equity” or “jury nullification” and it dates back to Bushell’s case (1669) Vaughan 135 124 E.R. 1006, which decided that jurors could not be fined for returning not guilty verdicts against two Quaker preachers, Penn and Mead, contrary to the judge’s directions and contrary to the evidence, or as the 1669 report pithily puts it:
“Contra legem hujus Regni Angliæ, & contra plenam & manifestam evidentiam, & contra directionem Curiæ in materia legis, hic, de & super præmissis eisdem Juratoribus versus præfatos Will. Penn & Will. Mead, in Curia hic aperte datam, & declaratam de præmissis, iis impositis in Indictamento prædicto acquietaverunti, in contemptum Domini Regis nunc, legumque suarum, & ad magnum impedimentum & obstructionem Justitiæ, necnon ad malum exemplum omnium aliorum Juratorum in consimili casu delinquentium.”
The case is commemorated in a marble plaque displayed at the Old Bailey, which asserts that the case “established the Right of Juries to give their verdicts according to their Convictions.”
In fact the plaque is wrong. It did not establish such a right; only the principle that jurors could not be punished for returning the wrong verdict.
And while it is generally celebrated as a victory for liberty and even democracy, things are not as simple as that. Liberty and democracy depend upon the rule of law. Encouraging jurors to replace law with some nebulous principle of “justice” undermines the rule of law.
Not only can jurors not be punished for returning the wrong verdict, their acquittals cannot be appealed either. Nor, in practice, can their convictions, so long as the judge has given them proper directions.
If juries had a legal right to acquit regardless of the evidence and the law, it would be proper for defendants, or their advocates, to invite juries to ignore a judge’s directions altogether. That certainly is not the case, and anyone doing so runs the risk of being punished for contempt of court. Indeed Judge Reid has made himself unpopular by gaoling defendants who have deliberately ignored his legal rulings.
Moreover, the existence of an “absolute right to acquit” is inconsistent with the juror’s oath to “try the defendant and give a true verdict according to the evidence.” If the judge has ruled that evidence about climate change cannot be given, then a verdict which takes such evidence into account must involve the jurors abandoning that oath.
So the position is that juries have no right to disregard the law, it is just that nothing can be done about it if they do. Lord Mansfield put it rather well in a 1784 case (Shipley (1784) 4 Douglas 73, 99 ER 774):
“…the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.”
The distinction between a “right” and a “power” becomes even clearer if we imagine a jury that has taken a dislike to a defendant charged with a serious sexual assault on a young child. The medical evidence is conclusive: somebody is certainly guilty, but the child is too young to talk and the jurors cannot exclude the possibility that somebody else caused the injuries. Does the jury have a right to convict the defendant because the jurors think he probably did it? Certainly not, because the law demands a higher standard of proof. Does it have the power to convict, even though the jurors are not sure? Yes, but it is certainly not a power that they should use, tempted though they may be.
Ms Warner’s alleged contempt is not that her placard got the law wrong, even though it did. It would have made little difference if it had said, correctly, “Jurors you have an absolute power to acquit a defendant according to your conscience.”
The problem with holding up placards like hers outside courts is that nobody should try to influence a jury deciding a case except in a court-room. The “constitutional way” of deciding guilt, and one might think the fairest and best way, is by a properly controlled trial. At the beginning of any trial all judges will say something like: “Pay no attention to press reports, do not search for anything about the trial on the internet, and if anyone outside your number tries to influence you, please report it to me.” Anything calculated to distract jurors from deciding a case on the facts, law and arguments heard in court is unfair, improper and inimical to justice.
And whilst it may be worse to try to influence the jury with incorrect statements of the law, it’s still wrong if the law is correct.
Let’s take a hypothetical case far removed from the politics of climate change.
A fight develops between Adam and Ben (a pugilistic couple who often feature in law exams). Adam attacks Ben, but Ben defends himself and manages to knock Adam to the ground. Claiming to be terrified that Adam will get up and resume his attack, Ben then proceeds to kick him repeatedly in the head. One of the kicks causes a catastrophic brain injury from which Adam dies. Ben is charged with murder.
At his trial Ben relies on self-defence. The judge directs the jury that before Ben can be convicted the prosecution must prove that he was not acting in reasonable self-defence, and they should bear in mind that “a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If you conclude that in a moment of unexpected anguish Ben had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken ….”
That is an accurate legal direction, something very similar is given in almost every case where self-defence is raised, and it is broadly speaking helpful to the defence. It is usually balanced by a further direction that Ben would not be able to rely on self-defence if, even allowing for the difficulties he faced in the heat of the moment, the force he used was out of all proportion to the threat he faced.
Now let us suppose that Ben’s supporters, who consider it an outrage that he is being prosecuted at all, have gathered to protest outside the court building. The whole legal direction would be hard to fit on a placard, so they have whittled it down to the legally accurate statement:
“Someone under attack is entitled to use reasonable force to defend themselves.”
Are they be entitled to stand outside the court building holding up a notice with those words on it? They should not be. It makes no difference that the notice is legally accurate because their obvious purpose would be to emphasise the part of the law that favoured Ben, and thereby to put pressure on jurors to find him not guilty. If Adam’s bereaved relatives held up placards saying “no-one is allowed to use unreasonable force, even in self-defence,” that too would be both an accurate statement of the law, and an attempt to put improper pressure on jurors.
So it matters little whether Ms Warner’s placard was a correct or an incorrect statement of the law. Nobody out of court should be trying to influence the jury. It certainly makes no difference that she feels strongly about climate change.
None of that in itself means that the Solicitor General is necessarily right to prosecute Ms Warner. Not every contempt of court requires prosecution. Sometimes it may be best to turn a blind eye. Sometimes an apology, or simply a promise not to repeat the behaviour is enough. The government website makes clear that even when the evidence might suggest a contempt has taken place prosecution will often be disproportionate. And the Solicitor General requires the permission of a High Court Judge before a prosecution can proceed. Nevertheless, trying to influence juries is a serious matter, and protecting the integrity of trials, and ensuring that juries only decide cases on the law and the evidence is fundamental to the criminal justice system. The alternative is that cases are won by the side with the slickest public relations team, or the most vocal protestors.
Ms Warner is supported by the Good Law Project, which has many vocal supporters and a slick public relations team. It explains why it is “proud to stand with Trudi:”
“When the law is too far from justice, juries can decide that justice should prevail. This is a vital safeguard in our democracy.
The solicitor general – a conservative minister who advises the government on the law – is attacking this crucial principle and trying to put Trudi behind bars because of what was happening in that hearing at the Inner London Crown Court, and because of a much, much wider story about our changing world.
Trudi was standing outside a court building where people were on trial for causing a public nuisance by sitting in a road to protest at the government’s failure to tackle the climate crisis. They were demanding that the government take urgent action to insulate homes and reduce carbon emissions. But the judge wouldn’t let them tell the jury why they were protesting, banning them from even mentioning the words ‘climate change’ or ‘fuel poverty’.”
Many people will share some of these sentiments. No doubt Ms Warner is a courageous and principled campaigner but that does not make her right. There is a profound danger in encouraging juries to substitute their own view of “justice” for the law.
In a famous scene in Robert Bolt’s play A Man for All Seasons, Thomas More – at that point Lord Chancellor of England – argues with his wife Alice and son-in-law William Roper (memorably described by Bolt as a man of “little imagination, moderate brain, but an all-consuming rectitude which is his cross, his solace, and his hobby,” I think we all know the type) who want him to order the arrest of Richard Rich, the man who would later betray him.
ALICE (Exasperated, pointing after RICH) While you talk, he’s gone!
MORE And go he should, if he was the Devil himself, until he broke the law!
ROPER So now you’d give the Devil benefit of law!
MORE Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER I’d cut down every law in England to do that!
MORE Oh? … And when the last law was down, and the Devil turned round on you-where would you hide, Roper, the laws all being flat? … This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? … Yes, I’d give the Devil benefit of law, for my own safety’s sake.
Without law there can be no justice, something the Good Law Project likes to emphasise in all other contexts, yet seems to abandon in this case. If juries disobey the law they will become engines of injustice. Nobody should be encouraging them to do so.
If juries disobey the law they will become engines of injustice. Nobody should be encouraging them to do so.
Well said, Matthew
I asked one of the silent protesters outside the Old Bailey, who was sporting a placard with the same message as Ms Warner’s, if she thought that juries had a right to convict people out of conscience. Answer came there none, but then it was a silent protest.
Top question, Ff.
It’s reminiscent of a bible scene.
PP: which one would you like me to have executed?
Jury of the populace: ‘im, guv, the one who isn’t Barabbas.
Perhaps it is only the “wrong” verdict when it goes against the belief that your argument is right.
I wonder if the “Good Law Project” would take the same view if a defendant was charged with rape? Or trying to blockade an abortion clinic?
My guess is probably not.
Which perfectly demonstrates why they are wrong in this context. If juries have the absolute right to acquit according to their conscience, then if the jury was conscientiously against abortion they would have the perfect right to acquit in a case where someone was charged with a crime in connection to, for example, blockading access to an abortion clinic. As soon as you entertain the principle that people’s own independent moral compasses can dictate whether they acquit or convict you run the risk of people with a moral compass quite at odds with your own doing so as well.
I’ve been (mentally) working through my Hohfeldian table of claim-rights and powers. Put in those terms, your case is, firstly, that juries have a power to decide a case according to conscience, together with an immunity to legal consequences for doing so; secondly, that they have very much the same power to decide a case purely on the basis of personal sympathies (or on any other basis, including tossing a coin); and, thirdly, that this is significantly different from having a “right” to do so.
I think the second premise is letting you down. Suppose that Judge Anderson, sitting in courtroom 1, is told by a spokesperson for the jury in her case that they intend to decide the case as a pure matter of conscience, as is their right as freeborn Britons. Later that day, Judge Baker bumps into a member of the jury in his case, who lets slip that they’ve been playing cards all morning and intend to acquit because the defendant’s got an honest face. By an extraordinary coincidence, Judge Darrow’s jury is also basing its reasoning entirely on the defendant’s appearance, while Judge Cocklecarrot’s is also intent on deciding on their conscience; neither of those juries let it be known what they’re doing, however.
At the end of this rather laborious thought-experiment, it seems to me that there’s a significant difference between juries A and B: jury B is likely to be discharged for abusing their position, whereas jury A isn’t. However, there isn’t any difference between juries C and D, both of whom can go home and forget about it. They did in fact have a right to bring the verdict on the basis that they did, precisely because their verdicts stand and can’t now be overturned, while they will face no consequences: a power and an immunity make a right.
But there’s an additional power/immunity pairing here. They also had the power, back in the jury room, to decide the case on any basis whatever; what the difference between juries B and D demonstrates is that jury D didn’t have immunity to consequences from doing so, if it had become known. Usually, of course, how a jury decides a case never does become known, so the distinction between the right to decide the case (in whatever way) and the right to deliver a verdict (on whatever basis) is academic – but it is a real distinction.
The question being raised at the moment concerns jury A. We know that juries – by virtue of their power to deliver a verdict based (potentially) on a whole variety of bad grounds, and their immunity to consequences to doing so – have a right to deliver a verdict based on conscience; indeed, as bad grounds for a verdict go, it’s one of the better ones. What Trudi Warner was encouraging them to do was to decide the case based on conscience. Clearly there’s a general – albeit largely unpoliced – ban on deciding a case based on news coverage, rumour, hearsay, hunches, dice rolls etc, or for that matter on partial and slanted readings of the law: encouraging a jury to do any of those things would be a clear contempt. Does the same apply to the jurors’ conscience, or does conscience have a special status?
I think there’s a widespread and well-established understanding that conscience is different, and should be respected as a means for deciding a case. It seems to me that that understanding is what the Solicitor-General is challenging, and I think it will be a bad day for justice if the challenge succeeds. With a certain amount of reluctance (I endorse your point about attempts to influence juries), I do stand with Trudi Warner.
I apologise for the near-unreadable formatting of the above, long, comment, which was not my doing. (I used paragraph breaks, bolding and all sorts.)
Everything seems to have been formatted perfectly as far as I can see!
There are miscarriages of justice often and it would appear that the trial judge has considerable influence in the trial that influences the jury to reaching an overal decision. Of note in trials in the US as well where evidence is heavily emotional and a person’s testimony only but lacks credible supportive evidence a jury often forms that decision more by emotion than been obejective. The only appeal to the jury is via the judge and if the judge is bias then….. I think the placate note was a good try to inject another angle to jury. I do not like judge only trials as bias can have a bad effect on justice but appeals to higher courts can right the injustice quicker and more often than the UK approach like the american student in Italy a few years ago she got two further trials on appeals. And the Cardinal in australia got two appeals.
Should the plaque also be covered up then? What is the legal distinction between holding up a sign and a plaque that is put up in the Old Bailey? Do we have one rule for old plaques in courts and another for temporary signs held up outside?
Certainly not. It’s not intended to influence jurors, I very much doubt that many even notice it (I don’t think it’s even in a part of the building to which jurors have access, but I haven’t been to the Old Bailey for years so I can’t remember) and there’s no doubt that it is an historic case that deserves commemoration.
Accepting your note that it may turn out that jurors do not have access to that location…what would be the legal distinction if jurors were able to see it? Would it be fine if Warner held up a sign with the precise same wording as the plaque?
Evidently, according to the law, she was in the wrong to hold up the plaque but I think prosecution is possibly a little excessive. In the meantime, perhaps they should replace the Old Bailey plaque with a more accurate one.
Furthermore, regarding your example, I don’t think it’s right that juries should be able to convict with insufficient evidence and defendants should be able to appeal when they have. The original Appeal act in 1907 allowed for that and the suggestion has been repeated in numerous reviews since. if juries were made to give reasons for their verdicts, it would be easier to see whether they were following the judge’s directions.
Was the judge correct to tie the hands of the jury? Was the exclusion of the climate change defence a legitimate legal move? Did the politics of the judge bear on this decision? The law is not always even handed or clearly defined and judges can be and, have known to be, dishonest, incompetent and corrupt. Sometimes all three. It takes a jury of conscience to remind the judiciary that they often screw up.
My thoughts too.
Clearly the laws of the land are not about justice and often don’t deliver it, though concern for justice is often given as the reason for them existing and being exercised.
We know the law and justice are not the same thing.
However, barristerblogger is right to criticise Trudi Warner for attempting to influence the jury. As a protestor/campaigner standing outside the court on the day of the trial, that’s exactly what she was attempting to do. But she should not be prosecuted for it.
But any idea that a court of law, judges, barristers and juries act independently of their biases, beliefs or social conditioning is utter fantasy.
If a judge’s direction to the jury is wrong in law, the Court of Appeal is there to put that right. The jurors to to return a verdict on the evidence presented to them and on the law as the judge tells them it is, not as they think it is, or should be.
Dear James, I respectfully disagree. The Court of Appeal is not often there to put things right. In a perfect world perhaps but, not in reality. It takes a great deal of money to take a case to the CofA, most defendants will not have it. Furthermore, when you’ve lost a case where you believe there has been an injustice, it may take an individual great mental fortitude to keep fighting for justice. Then add into that mix that the CofA can be stubborn when it comes to justice. One example is that for compensation to follow a quashed imprisonment the prisoner has to show that he most definitely was not guilty. A high hurdle. Another example relates to the Case of the Birmingham Six, where the CofA dragged their feet for years to set the innocent free. Indeed, the rational was expressed by Lord Denning, when he said , “it was better that the innocent be hanged than the administration of justice be impugned”
And of course it could be argued that by pointing out these problems I am impugning the administration of justice, but in a land where freedom of expression is meant to apply, should the justice system be exempt from such criticism or be reminded that a jury may return a verdict as to conscience, because the judge has for some reason kept that knowledge from the jury. I vaguely remember a case from the 1800’s, I think it was, where a judge imprisoned the jurors for not returning a verdict in line with his expectations. I also have recollections of judges having some sexual gratification when handing out the death penalty, judges can be pretty awful human beings. And more recently, an American judge used a penis pump (whatever that is) whilst in court. And, when the question of rotten boroughs was being exposed, the judges exported the defendants to Australia for their cheek in fighting for democracy.
I don’t think your Denning quote is accurate. Where are you getting it from. What he said (in a civil case brought by the Birmingham 6 against the police) was:
“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous.
“That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968 .
“This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.”
It was nothing to be proud of, even at the time, and let alone with the benefit of hindsight, but not quite as bad as your (mis?)quotation. Admittedly he did go a bit mad in his final years.
Hi Mathew,
It’s a round about accurate quote, pretty accurate that is. I believe it came from two interviewing journalists interviewing him after his retirement. They could have been Daily Mail journalists, perhaps. I haven’t looked it up today, but a discussion/lecture in Law School was when I first heard of it, and then a few years ago, I think I came across it again on Lord Denning’s Wikipedia page. Apparently he never denied saying it.
Below, I’ve now looked it up, is the copied and pasted passage from Wikipedia.
“In the summer of 1990, he agreed to a taped interview with A. N. Wilson, to be published in The Spectator. They discussed the Guildford Four; Denning remarked that if the Guildford Four had been hanged “They’d probably have hanged the right men. Just not proved against them, that’s all”.[115] His remarks were controversial and came at a time when the issue of miscarriage of justice was a sensitive topic.[116] He had expressed a similar controversial opinion regarding the Birmingham Six in 1988, saying: “Hanging ought to be retained for murder most foul. We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten, and the whole community would be satisfied … It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.”[117][118]“
My quote was a little off, but not so much.
Apologies for a typo. The last sentence should begin with “Because” not But.
If there is literally a plaque in the Old Baily stating: “established the Right of Juries to give their verdicts according to their Convictions.”, then I think it’s reasonable for a lay person to conclude that it is law. The protesters assertion didn’t come out of nowhere.
I guess I see jury nullification as something positive, so that juries can stop bad law, a final check. If the CPS and the police can decide that something is not worthy of prosecution, then surely a jury hearing the case can be qualified enough to decide if the case meets their conscience. But yes, there s obvious risks with that too.
It would be interesting research to see if juries were actually aware that there can be no penalty for jury nullification, and if it was new information, whether it would have influenced their verdict. I worry jurors may have felt that they had no choice to convict, even if they thought that a conviction was disproportionate, as they could be prosecuted for doing so. I would support jurors being told by the judge that if they act by their conscience, that they will suffer no punishment
I remember a murder case several years ago (I used to be a court reporter) when , in the face of all the evidence (which was quite compelling) the jury acquitted a man charged with the murder of his daughter’s abusive partner.
The victim had, as the prosecution agreed, for a long time subjected the unfortunate woman to sustained physical and mental abuse, and the obvious inference is that the jury took the collective view that the victim got no more than he deserved and if someone treated their daughter like that, they’d want to kill him, too, so they weren’t going to convict.
While I agree juries should be able to return what seems to them the correct verdict, I really don’t think they should be encouraged, as you say, to disregard their oath to return a true verdict according to the evidence, whatever their sympathies.
Yes, I have a vague recollection of that case too.
Seems fairly straightforward. Perhaps this is too simplistic.
The purpose of the right to give arbitrary verdicts is nothing to do with that ; it is clearly a breach of the oath of the juror. It’s purposes is to stop either political or judicial threats to juries, it fits neatly alongside jury nobbling.
The difficulty of prosecuting a juror or jury in this case does not however mean that a jury can simply make any decision it likes, which is what the signs are implicitly saying.
These people also want it both ways. I don’t recall them complaining when (for example) the people who very clearly vandalised a building in London (and admit it) were not convicted.
Finally, they lie about it. They aren’t idiots so I think it’s dishonesty. So you get things like “X was jailed for 3 months for being on a march”, whereas what they’re usually doing is ignoring an order from the court, or possibly for an act whilst on that march.
It’s like saying someone was “jailed for 20 years for a driving offence”, while omitting to mention that the driver deliberately ran over and killed three people.
The “Good Law Project” is simply a system for scamming people for implausible cases via Crowdfunding.
Most everything is lost and Maugham often links a gimme and something political. So there’ll be a case say that “Proper procurement procedures were ignored during the pandemic” (undoubtedly true) and “there was mass corruption” (unlikely, and no evidence of such). Win the first, lose the second, and claim “I won”.
I think these scams ; Maugham and Cadwalladr are the most visible should be stopped. I would suggest making crowdfunding a joinable action.
I’m always quoting Bolt, or more often referring someone to the excellent Paul Scofield 1966 (?) version where this specific clip is available on its own on youtube.
They don’t get it. (Occasionally you get “well, he’s been dead 600 years”)
There’s always demands for some power or other from politicians and the idiot branch of their supporters that they need this super new usually unlimited power to deal with evil ‘x’, or that violence or something is justified (e.g. chucking milk shakes at Farage) because he’s bad and so on.
It never occurs to them that a Corbyn, or a Farage, or whoever their personal political nemesis is may come to power, and then he or she will have access to those same powers, and then they become evil ‘x’, and to coin Jo Brand , if milk shake is okay, why not battery acid ?
This is extraordinarily clever and I’m sure your hourly rate is astronomical.
But in the world of common sense it is clearly bonkers to ignore climate change and imminent mass extinction as a factor in climate protests. Trudi Warner’s placard cuts through all the sophistry, and I stand with her.
Legal arguments notwithstanding, my concern is that judges are routinely failing to inform jurors of their ‘powers’. Once serving on a jury, jurors are not permitted to even inform themselves on legal procedure, let alone research issues relating to the particular case.
A slight aside from me. As one who works in the energy industry the whole defence strategy of these eco- warriors and their supporters is wrong. Most of them are badly informed of the climate evidence, because our media and politicians have been swayed into promoting this climate change meme.
Anyway, does this woman have the right to stand outside court with her placard ? I’m all for free speech, but within the bounds of the law and if she was trying to influence the outcome of a trial by her actions and words on a placard, then it’s probably right she faces prosecution. Her beliefs may be wrong but firmly held, however this does not give her the right to usurp the law and legal system.